Partly allowed

The Branch Manager v. Smt Gowramma

Karnataka HC25 Nov 2022MFA/21/2017

Case brief

AI extract

What is this about?

Insurance coverage for a goods owner extended to the return journey after unloading, despite a registered seating capacity of one. The court upheld insurer liability and rejected contributory negligence by the motorcyclist. All four appeals were partly allowed, enhancing compensation for both deaths and reducing interest to 6%, excluding appeal-delay periods.

What did the court decide?

Compensation enhanced in both claims; interest reduced to 6% per annum, excluding respective appeal delays of 25 and 367 days.

The Branch Manager Vs Smt Gowramma — Insurance | Karnataka HC (2022)

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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 21 OF 2017 (MV-D)

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C/W MISCELLANEOUS FIRST APPEAL NO. 3356 OF 2016(MV-D) MISCELLANEOUS FIRST APPEAL NO. 1629 OF 2017(MV-D) MISCELLANEOUS FIRST APPEAL NO. 4784 OF 2017(MV-D)

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IN MFA NO.21/2017

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Digitally signed by PAVITHRA B Location: High Court of Karnataka

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BETWEEN:

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THE BRANCH MANAGER CHOLAMANDALAM GENERAL INSURANCE COMPANY LIMITED., DARE HOUSE, 2ND FLOOR, NO.2, N.S.C. BOSE ROAD, CHENNAI-01, TAMIL NADU STATE. REPRESENTED BY ITS LOCAL BRANCH: THE REGIONAL MANAGER, CHOLAMANDALAM GENERAL INSURANCE COMPANY LIMITED., REGIONAL OFFICE UNIT NO.4, GOLDEN HIGHT COMPLEX, RAJAJINAGAR,BANGALORE CITY. BY IT S SENIOR MANAGER-CLAIMS

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…APPELLANT

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(BY SRI. O MAHESH., ADVOCATE)

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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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AND:

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SMT GOWRAMMA AGE 46 YEARS, W/O LATE DEVARAJEGOWDA

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KUM: DIVYA, AGED 25 YEAR D/O LATE DEVARAJEGOWDA

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SRI. DILIP KUMAR AGE 23 YRS S/O LATE DEVARAJEGOWDA

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KUM. BHAVYA AGE 21 YEAR D/O LATE DEVARAJEGOWDA ALL R/A DUMMIKOPPALU, DODDAMAGGE HOBLI, ARAKALAGUD TALUK, PRESENTLY R/A FORT, MARIGUDI STREET, CHANNARAYAPATNA TOWN, 573116.

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SRI. AVINASH MAJOR, S/O THAMMEGOWDA @ MARITHAMMEGOWDA, RESIDING AT DUMMI VILLAGE, MARITHAMMANAHALLI POST, DODDAMAGGE HOBLI, ARAKALAGUD TALUK 573102.

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…RESPONDENTS

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(BY SRI. HALESHA R G, ADVOCATE FOR R1-R4 ., R5-SERVED)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED24.9.2016 PASSED IN MVC NO.539/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, CHANNARAYAPATNA, AWARDING A COMPENSATION OF

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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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RS.12,70,000/- WITH INTERST @ 9% P.A FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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IN MFA NO.3356/2016

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BETWEEN:

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THE GENERAL MANAGER CHOLAMANDALAM GENERAL INSURANCE COMPANY LIMITED DARE HOUSE, 2ND FLOOR NO.2, N H C N S C BOSE ROAD CHENNAI-600001. BY THE REGIONAL MANAGER CHOLAMANDALAM GENERAL INSURANCE COMPANY LIMITED, REGIONAL OFFICE GOLDEN HEIGHT COMPLEX 6TH FLOOR, 59TH C CROSS 4TH M MAIN, RAJAJINAGAR BANGALORE-560010 BY ITS SENIOR MANAGER-CLAIMS

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…APPELLANT (BY SRI. O MAHESH., ADVOCATE (THROUGH VIDEO CONFERENCE)

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AND:

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SIDDALINGAMMA W/O NANJUNDASWAMY AGED ABOUT 38 YEARS

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NANJUNDASWAMY S/O NANJAPPA AGED ABOUT 42 YEARS BOTH ARE RESIDING AT MOOLEKALENAHALLI VILLAGE

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MFA No. 21 of 2017 MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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KASABA HOBLI HOLENARASIPURA TALUK HASSAN DISTRICT-573201.

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AVINASH

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S/O THIMMEGOWDA MAJOR R/O DUMMIMARITHAMMANAHALLI POST DODDAMAGGE HOBLI ARKALGUDU TALUK HASSAN DISTRICT-573201

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…RESPONDENTS

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(BY SRI. GIRISH B BALADARE.,ADVOCATE FOR R1 & R2, R3NOTICE HELD SUFFICIENT V/O DT:3/2/21)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 02.03.2016 PASSED IN MVC NO.378/14 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, HOLENARASIPUR, AWARDING COMPENSATION OF RS.6,65,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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IN MFA NO.1629/2017

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BETWEEN

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SMT GOWRAMMA W/O LATE DEVARAJEGOWDA, AGED ABOUT 47 YEARS,

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KUMARI DIVYA D/O LATE DEVARAJEGOWDA, AGED ABOUT 26 YEARS,

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SRI. DILIPKUMAR D/O LATE DEVARAJEGOWDA,

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MFA No. 21 of 2017 MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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AGED ABOUT 24 YEARS,

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KUM BHAVYA D/O LATE DEVARAJEGOWDA, AGED ABOUT 22 YEARS, ALLA ARE R/AT DUMMIKOPPALU DODDAMAGGE HOBLI, ARAKALAGUD TALUK PRESENTLY R/AT FORT, MARIGUDI STREET, CHANNARAYAPATNA TOWN

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…APPELLANTS

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(BY SRI. HALESHA R G., ADVOCATE)

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AND:

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SRI AVINASH S/O THAMMEGOWDA @ MARITHAMMEGOWDA, MAJOR, R/AT DUMMI VILLAGE, MARITHAMMANAHALLI POST, DODDAMAGGE HOBLI, ARAKALAGUD TALUK

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THE MANAGER CHOLAMANDALAM GEN., INS., CO., LTD., DARE HOUSE, 2ND FLOOR, NO.2 N.S.C.BOSE ROAD, CHENNAI-01, TAMIL NADU STATE

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REPD. BY ITS LOCAL BRANCH, THE REGIONAL MANAGER, REGIONAL OFFICE, CHOLAMANDALAM GENERAL INSURANCE CO.LTD., UNIT NO.4, GOLDEN HIGHT COMPLEX, RAJAJINAGAR, BANGALORE CITY

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…RESPONDENTS

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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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(BY SRI. O MAHESH FOR R2 ., ADVOCATE FOR R2 (THROUGH VIDEO CONFERENCE)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:24/09/2016 PASSED IN MVC NO.539/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE & J.M.F.C., CHANNARAYAPATNA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO.4784/2017

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BETWEEN:

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SIDDALINGAMMA W/O LATE NANJUNDASWAMY AGED ABOUT 38 YEARS

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NANJUNDASWAMY S/O LATE NANJAPPA AGED ABOUT 42 YEARS

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THE BOTH APPELLANTS ARE R/AT MOOLEKALENAHALLI VILLAGE KASABA HOBLI HOLENARASIPURA TALUK HASSAN DISTRICT- 573201.

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…APPELLANTS

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(BY SRI. GIRISH B BALADARE ., ADVOCATE)

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AND:

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THE REGIONAL GENERAL MANAGER CHOLAMANDALAM GENERAL INS. CO.LTD DARE HOUSE, 2ND FLOOR NO.2, N H C N S C BOSE ROAD CHENNAI-600001.

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REPRESENTED BY

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THE REGIONAL GENERAL MANAGER

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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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CHOLAMANDALAM GENERAL INSURANCE CO. LTD. REGIONAL OFFICE GOLDEN HEIGHT COMPLEX NO.59TH CROSS RAJAJINAGAR

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BENGALURU-560 010.

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2. AVINASH

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S/O THIMMEGOWDA AGED ABOUT 33 YEARS R/AT DUMMIMARITHAMMANAHALLI POST DODDAMAGGE HOBLI ARAKALGUD TALUK HASSN DISTRICT-573201.

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…RESPONDENTS (BY SRI. O MAHESH FOR R1., ADVOCATE FOR R1 (THROUGH VIDEO CONFERENCE, R2-NOTICE DISPENSED WITH V/O DATED:15-03-2021) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:02.03.2016 PASSED IN MVC NO.378/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, & JMFC, MACT, HOLENARASIPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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JUDGMENT

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These appeals are filed under Section-173(1) of the

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Motor Vehicles Act 1988 (hereinafter referred to as ‘MV Act’ for brevity).

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MFA No.21/2017 (MVC No.539/2014) is filed by the appellants-insurance company challenging the judgment and award dated 24.09.2016, passed in M.V.C.No.539/2014, on the file of the Senior Civil Judge, Channarayapatna, (hereinafter referred to as ‘the Tribunal’ for brevity) questioning the liability as well as quantum of compensation.

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MFA No.3356/2016 (MVC No.378/2014) is filed by the appellant-insurance company, challenging the judgment and award dated 02.03.2016, passed in M.V.C.No.378/2014, on the file of the Senior Civil Judge,

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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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MACT, Holenarasipura, questioning the liability fixed as well as the quantum of compensation.

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MFA No.1629/2017 (MVC No.539/2014) is filed by the appellant-claimant, challenging the judgment and award dated 24.09.2016, passed in M.V.C.No.539/2014, on the file of the Senior Civil Judge, Channarayapatna, (hereinafter referred to as ‘the Tribunal’ for brevity) seeking enhancement of compensation.

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MFA No.4784/2017 (MVC No.378/2014) is filed by the appellant-claimant, challenging the judgment and award dated 02.03.2016, passed in M.V.C.No.378/2014, on the file of the Senior Civil Judge, MACT, Holenarasipura, seeking enhancement of compensation.

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MFA No. 21 of 2017 MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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Brief facts:

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On 22.11.2013 at about 6.00 p.m., when the

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deceased M.N.Raghu was going in a motor cycle bearing registration No.KA-13-V-4832 to Temple, on the left side of the road, in a moderate speed, the driver of a goods Ape auto bearing registration No.KA-13-B-3520, drove the same in a rash and negligent manner with high speed and dashed against the motor cycle of the deceased. As a result of which, both the rider of the motor cycle as well as

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the passenger traveling in the goods auto-rickshaw sustained severe injuries and died.

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Hence, a claim petition was filed by the claimants

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under Section-166 of the M.V. Act, claiming compensation for the death of the deceased in the road traffic accident.

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The Tribunal on appreciating the materials on

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record, allowed MVC No.539/2014 in part, and awarded a

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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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compensation of Rs.12,70,000/- along with interest at 9% per annum from the date of petition till the date of deposit. The Tribunal held respondent – insurance company liable to pay the compensation.

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The Tribunal on appreciating the materials on record, allowed MVC No.378/2014 in part, and awarded a compensation of Rs.6,65,000/- along with interest at 9% per annum from the date of petition till the date of deposit. The Tribunal held the owner and insurer are jointly and severally liable to pay the compensation.

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ON LIABILITY AS WELL AS RASH AND NEGLIGENT ASPECT:

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The learned counsel for the insurance company - appellant submitted that the accident was caused on account of rash and negligent driving of the deceased who was riding the motor cycle. Further, submitted that the deceased was occupant of Devarajegowda, who died in the

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MFA No. 21 of 2017 MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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accident was traveling in the auto-rickshaw as a gratuitous passenger. Therefore, the insurance company is not liable to pay the compensation. Further submitted that as per the Registration Certificate, Exhibit-R7 extract, the seating capacity of the auto-rickshaw is one which is only for driver. Therefore, the deceased who was driving the autorickshaw is a gratuitous passenger. Therefore, the insurance company is not liable to pay the compensation.

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Further, submitted that the auto-rickshaw is a transport vehicle. But the driver of the auto-rickshaw was holding Driving License to drive LMV (Non-Transport Vehicle). Therefore, the insurance company is liable to be exonerated on the violation of condition of this policy. Further, submitted that there is no evidence to prove that the deceased has traveled along with goods. Therefore, the deceased was gratuitous passenger. Hence, the insurance company is not liable to pay the compensation.

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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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On the other hand, the learned counsel for the

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claimants in both the cases submitted that the deceased was traveling along with the goods as per the evidence on record. Hence, Section-147 of the MV Act is applicable, covering the risk of the deceased. Hence, the insurance company is liable to pay the compensation. Further, submitted that the accident is caused entirely due to the rash and negligence of the auto-rickshaw driver. Therefore, the deceased who was riding the motor cycle was not rash and negligent. Therefore, the Tribunal is correct in holding the driver of the auto-rickshaw was rash and negligent in driving the auto-rickshaw and caused the accident. Further, submitted that the driver who is holding the Driving License to drive LMV (Non-transport) is also competent to drive LMV (Transport).

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MFA No. 21 of 2017 MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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Therefore, submitted the case is squarely covered by the judgment of the Hon’ble Apex Court in the case of MUKUND DEWANGAN Vs. ORIENTAL INSURANCE COMPANY LIMITED¹ . Therefore submitted that there is no infraction caused. Hence, the Tribunal is correct in holding both the owner and insurer are jointly and severally liable to pay the compensation, which needs no interference. Therefore, prays to dismiss the appeal held by the insurance company.

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The Tribunal after considering the evidence on record has held that the driver of the goods Ape Auto bearing No.KA-13-B-3520, was rash and negligence in driving the auto-rickshaw and caused the accident. In the said accident, the deceased Devarajegowda who was in the goods auto-rickshaw and the rider of the motor-cycle died. The entire allegation is made against the driver of

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1 (2017) 14 SCC 663

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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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the auto-rickshaw. As a result, a resultant charge-sheet was filed accusing the driver of the goods auto-rickshaw. Therefore, the Tribunal was correct in assessing the rash and negligence and correctly held that the driver of the auto-rickshaw was rash and negligent in driving the autorickshaw and caused accident. Therefore, there is no contributory negligence proved on the part of the deceased who was riding the motor cycle. Therefore, regarding the finding given by the Tribunal regarding rash and negligence aspect is concerned there is no ground available to interfere with the same.

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Regarding contention urged by the insurance company that the deceased Devarajegowda was traveling in the Goods Auto Rickshaw as gratuitous passenger is concerned, it is contended that the seating capacity of the case Goods Auto Rickshaw is one which is meant only for driver and no one can travel in the Goods Auto Rickshaw,

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MFA No. 21 of 2017 MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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therefore, if any person has travelled in the Goods Auto Rickshaw that amounts to traveling as a gratuitous passenger and therefore the risk is not covered under the insurance policy.

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These aspects have to be considered in the light of the evidence along with the legal provisions as per Section-147 of the MV Act. No doubt Exhibit-R7, which is Registration Certificate the seating capacity in the Goods Auto Rickshaw is one. Exhibit-P2 is complaint given to the Police soon after the accident. In the complaint, Exhibit-P2 it is stated that the deceased Devarajegowda died in the said accident.

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Exhibit-P8 is the statement of one Manjegowda who is inquest panchanama witness stated that on 21.11.2013, the deceased Devarajegowda had been to Ramanagar Silk market to sell the silk by hiring an auto-

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MFA No. 21 of 2017 MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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rickshaw and after selling the silk cocoons returned to his village in the same auto-rickshaw. The auto-rickshaw met with an accident with motor-cycle and due to which the deceased Devarajegowda and the motor cycle rider died. Exhibit-P9, is the Agriculture Passbook of deceased Devarajegowda, it is stated that the deceased had sold silk and cocoon and was returning in the Goods Auto Rickshaw. Therefore, as on the date of the accident, the deceased Devarajegowda was returning after selling the cocoons to his village in the same Goods Auto Rickshaw and met with the accident and in the said accident the deceased died. Therefore, upon reappreciating the evidence on record on all its preponderance of probabilities it is proved that the deceased after unloading the cocoon and returning in the same Goods Auto Rickshaw died in the accident. The factum of death of deceased Devarajegowda in the said accident is not

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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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disputed, but it is only contention of the insurance company that the deceased was sitting in the cabin beside the driver and the seating capacity is only one, hence the risk of the deceased is not covered. When it is proved that the deceased was while returning to the village after unloading the cocoon in the silk market of Ramnanagar, that means after unloading the cocoon returning in the same auto-rickshaw is amounting to traveling along with the goods in the vehicle.

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The words used in Section-147 of MV Act that traveling alongwith the goods not only means traveling along with goods when it is loaded, but also after unloading / emptying the goods from the vehicle and returning in the same vehicle also amounts to traveling along with goods.

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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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The judgment of the HIGH COURT OF JUDICATURE AT MADRAS, MADURAI BENCH, in the case of ORIENTAL INSURANCE CO. LTD. VS. NALLUCHAMY AND ANOTHERS² , while interpreting Section-147(1)(b)(i) at para Nos.12, 13, 14, 15, 16 and 17, has held as follows:

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“12.As per Section 147(1)(b)(i), the Insurance Company is liable to pay in respect of death or bodily injury of any person including the owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place.

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13.In this case, it has to be decided whether the Insurance Company is liable if on facts the owner or the authorised representative who travelled in the vehicle

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2 2015 ACJ 2646

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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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after unloading the vehicle died or suffered injuries, is entitled to be paid compensation from the Insurance Company.

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14.The provisions of Section 147(1)(b)(i) of the Motor Vehicles Act has to be construed liberally. It is not the case of the Insurance Company that the load auto did not carry the goods, ie., 3 bags of tomatoes of the claimant. Their case is that after unloading only he travelled and therefore he is not covered.

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15.The judgment relied on by the learned counsel for the appellant is of no use. In that case, though the claimant made a claim that he travelled in the lorry along with the rice bags, this Court came to the conclusion that there was no evidence to claim that he travelled along with the goods. In those circumstances, this Court in United India Insurance Co. Ltd. v. Annamalai, reported in 2011 (2) TN MAC 737 came to the conclusion that the Tribunal has erred in

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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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fastening the liability on the Insurance Company when there is absolutely no evidence to the effect that the claimant travelled along with the goods in the lorry. But, in the present case, it is admitted that the tomato bags carried by the load auto belongs to the claimant. The only contention is that the accident took place when he travelled after unloading the goods and hence, he could not claim coverage.

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16.In an identical circumstance, the Kerala High Court, in United India Insurance Co. Ltd. v. Velayudhan, reported in 2011(1) TN MAC 233 (Ker.) has held that though the accident took place while the lorry was returning after unloading the rice which was carried in the said vehicle, the Insurance Company is still liable. It is relevant to extract a portion of paragraph-5 of the said judgment, as under:

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It is true that nothing happened when the goods were taken. But the unfortunate

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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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incident took place while the lorry was returning after unloading the rice there.

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17.In my view, the judgment of the Kerala High Court (cited supra), covers the issue. Further, I am of the view that provisions of Section 147 of the Motor Vehicles Act has to be interpreted liberally and the main purpose is to grant compensation to the unfortunate accident victims. Unless it is established by the Insurance Company that they are not at all liable, the Insurance Company cannot escape from its liability to pay compensation, particularly when it is admitted that the tomato bags carried by the load auto belongs to the claimant and he being an agriculturist, took these bags to the market and returned in the auto, which carried the tomato bags and that the said auto got involved in the accident at the time of return. Hence, in my view the Insurance Company is liable to pay compensation.” .

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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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Therefore, the issue involved in the present

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case is whether the insurance company is liable if the owner or the authorized representative of the goods after unloading or emptying the goods in the market and while returning in the same goods vehicle died, which means actually traveling in the goods vehicle but also after unloading the said goods while returning in the vehicle means in the accident died is also amounting to traveling along with goods for the purpose of Section-147(1)(b)(i) of MV Act.

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Therefore, where it is proved that in the present set of facts and circumstances the deceased had hired goods Ape Auto bearing No.KA-13-B-3520 for selling cocoon in the silk market at Ramnagar and after unloading the same by selling the cocoons and returning to his village in the same vehicle then it covers the risk as observed supra. Even though in the R.C. Book the seating

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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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capacity is one, but obviously in a goods vehicle no passengers can be traveled. But considering the nature of the vehicle, which is transport vehicle meant for carrying goods, would be including cleaner, loader,

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owner/representative of the goods will be traveling, then they cannot be categorized as Gratuitous Passengers. To meet out such contentions Section-147(1)(b)(i) of MV Act

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is amended by way of insertion by the Act 1994. Therefore, quite naturally in the RC Book seating capacity would show as one for driver, but that does not mean if other than driver no person such as owner or authorized representative of the goods in the said vehicle cannot be covered.

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In order to meet out the object that normally in

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the goods vehicle driver alone cannot take the goods in the vehicle but also any authorized representative or

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owner of the goods will travel along with the goods, so the

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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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to cover the risk of them, Section-147(1)(b)(i) of the MV

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Act is inserted by an amendment. Therefore, in the RC book even though seating capacity is mentioned as only one, that does not mean that the risk is not covered under the insurance policy for the person who is

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owner/authorized representative of goods.

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Moreover, the Exhibit-R3 is Insurance Policy Package Goods Policy. Therefore, Exhibit-R3 insurance policy pertaining to the goods auto-rickshaw is Package Policy. Therefore, under these circumstances, the deceased Devarajegowda cannot be categorized as Gratuitous Passengers. Furthermore, Section-147(1)(b)(i) of the MV Act stipulates as follows:

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Section 147(1)(b)(i):

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(i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative

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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

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Therefore, as per the aforesaid provisions death or bodily injury of any person including the owner of the goods or his authorised representative carried in the vehicle is compulsorily covered as per requirements of the policy. Therefore, as per these provisions the risk of the person of nature in the present case is compulsorily covered. Therefore, where it is proved that the deceased travelled in the goods vehicle being owner of the goods and died in the accident, then the risk is covered compulsorily as per the legal provisions stated above.

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Therefore, covering the risk as per Section147(1)(b)(i) of MV Act is not controlled as per the seating capacity mentioned in the RC Book. Issuance of certificate of registration for the vehicle is different and covering risk

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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

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is different. Obviously, while issuance of certificate of registration of vehicle according to the class and type of vehicle, the seating capacity is mentioned but covering the risk is different aspect W.e.f. 14.11.1994 amendment is made as discussed above to the Section-147 of the MV Act, that the risk of the owner or authorized representations of the goods traveling in the goods vehicle is compulsorily covered. Therefore, even though the seating capacity is one mentioned in the RC book but the person who travelled along with the goods as ‘owner or authorized representatives’ means who has sustained injuries in the accident or has died then the risk is covered.

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So far as the Goods auto-rickshaw is concerned,

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the rider of the motorcycle who met with the accident is third party. Therefore, both the owner and the insurer of goods auto-rickshaw are jointly and severally liable to pay

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¶192

MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

¶193

the compensation. Hence, in view of the existence of insurance policy as on the date of the accident, the insurance company shall indemnify the owner and consequently shall pay the compensation to the claimants.

¶194

REGARDING QUANTUM OF COMPENSATION:

¶195

MFA NO.21/2017 & MFA NO.1629/2017 (MVC NO.539/2014):

¶196

The Tribunal has awarded compensation as

¶197

follows:

¶198

Funeral Expenses	: Rs.	25,000/-
Loss of Love and Affection	: Rs.	1,00,000/-
Loss of Estate	: Rs.	1,00,000/-
Loss of Consortium	: Rs.	1,00,000/-
Loss of Dependency	: Rs.	9,45,000/-
TOTAL	: Rs.	12,70,000/-

¶199

In the present case, the deceased was aged 45 years and was an agriculturists and growing and selling

¶200

29 -

¶201

MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

¶202

silk cocoons died in the accident caused on 21.11.2013. The Tribunal has taken the income as Rs.7,500/- which is on lower side. Therefore, as per Chart of notional income recognized by the Karnataka State Legal Services Authority, a sum of Rs.8,000/- per month to be taken as notional monthly income of the deceased. The Tribunal has not added income towards loss of future prospects in life. According to the age of the deceased, 25% of the income is to be added towards ‘Loss Of Future Prospects’ as per the judgment of the Hon’ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi³ , i.e., Rs.2,000/- (Rs.8,000 x 25%). Therefore, the monthly income of the deceased is taken at Rs.10,000/- . There were totally 4 dependants, hence, 1/4^th of his income is deducted towards his ‘Personal And Living Expenses’. The appropriate multiplier applicable as per the judgment of

¶203

3 (2017) 16 SCC 680

¶204

30 -

¶205

MFA No. 21 of 2017 MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

¶206

the Hon’ble Supreme Court, in the case of Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another⁴ is ‘14’. Therefore, the compensation under the head ‘Loss Of Dependency along with Loss of Future Prospects in Life’ is recalculated and quantified as follows:

¶207

Rs.8,000 + 2,000 (25% of 8,000) x ¾ x 14 x 12 = Rs.12,60,000/-

¶208

The Tribunal has awarded a sum of

¶209

Rs.1,00,000/- towards ‘Loss of Love and affection’, which

¶210

is on lesser side. There are totally four dependants of the deceased, hence, as per the judgment of the Hon’ble Apex Court in the cases of Magma General Insurance Co. Limited v. Nanu Ram & Others⁵ and National

¶211

4 AIR 2009 SC 3104

¶212

5 2018 ACJ 2782

¶213

31 - MFA No. 21 of 2017 MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

¶214

Insurance Co. Ltd. Vs. Pranay Sethi⁶ , the claimants are

¶215

entitled to Rs.40,000/- each under the head ‘ Loss Of Consortium’ . Accordingly, Rs.1,60,000/- (Rs.40,000 x 4) is awarded under the head ‘Loss Of Consortium including Loss Of Love And Affection’ .

¶216

Further, compensation awarded under the head ‘Towards Loss of Estate and Funeral Expenses’, at Rs.1,25,000/- is modified and a sum of Rs.30,000/- is

¶217

awarded under the said head.

¶218

Hence, the claimants are entitled for a total enhanced compensation, under various heads as follows:

¶219

Loss of Dependency along : Rs. 12,60,000/with Loss of future prospects in life

¶220

Rs.8,000 + 2,000 (25% of 8,000) x ¾ x 14 x 12

¶221

6 (2017) 16 SCC 680

¶222

32 -

¶223

MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

¶224

Loss of Consortium And : Rs. 1,60,000/-

¶225

Loss of Love and Affection (Rs.40,000 x 4)

¶226

Funeral Expenses and : Rs. 30,000/Loss of Estate

¶227

TOTAL : Rs. 14,50,000/-

¶228

Therefore, the claimants are awarded a total compensation of Rs.14,50,000/- as against the compensation awarded by the Tribunal at Rs.12,70,000/-. Hence, the Claimants are entitled for an additional compensation of Rs.1,90,000/- (Rs.14,50,000 – Rs.12,60,000), along with interest at 6% per annum from the date of filing of the petition till deposit.

¶229

The Tribunal has awarded compensation along with interest at 9% per annum. However, it is held that the compensation shall carry simple interest at 6% per

¶230

annum instead of 9% per annum. However, the claimants

¶231

33 - MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

¶232

are not entitled for interest for the period of 25 days delay

¶233

in filing the appeal.

¶234

MFA NO.3356/2016 & MFA NO.4784/2017 (MVC NO.378/2014):

¶235

The Tribunal has awarded compensation as

¶236

follows:

¶237

Loss of Dependency : Rs. 5,40,000/Loss of Love and Affection : Rs. 1,00,000/Towards Funeral, : Rs. 25,000/Obsequious and Transportation of dead body expenses’ TOTAL : Rs. 6,65,000/ -

¶238

In the present case, the deceased was aged 19

¶239

years old and was a student studying 2^nd year diploma engineering as per Exhibit-P10 to P13. NCC certificate and marks cards of the deceased are produced herewith. The

¶240

34 -

¶241

MFA No. 21 of 2017 MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

¶242

Tribunal has taken the notional income as Rs.5,000/which is on lower side. Therefore, as per Chart of notional income recognized by the Karnataka State Legal Services Authority, a sum of Rs.8,000/- per month to be taken as notional monthly income of the deceased. The Tribunal has not added income towards loss of future prospects in life. According to the age of the deceased 40% of the income is to be added towards loss of future prospects as per the judgment of the Hon’ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi⁷ , i.e., Rs.3,200/- (Rs.8,000 + 3,200 (40%)). Therefore, the monthly income of the deceased is taken at 11,200/- . Since the deceased was a bachelor, 50% of his income is deducted towards his personal and living expenses. The appropriate multiplier applicable as per the judgment of the Hon’ble Supreme Court, in the case of Smt.Sarla

¶243

7 (2017) 16 SCC 680

¶244

35 -

¶245

MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

¶246

Verma & Others. Vs. Delhi Transport Corpn And

¶247

Another⁸ is ‘18’. Therefore, the compensation under the head ‘Loss Of Dependency along with Loss of Future Prospects in Life’ is recalculated and quantified as follows:

¶248

Rs.8,000 + 3,200 (40% of 8,000) x 50% x 18 x 12 = Rs.12,09,600/-

¶249

The Tribunal has awarded a sum of

¶250

Rs.1,00,000/- towards ‘Loss of Love and affection’, which

¶251

is on lesser side. There are totally TWO dependants of the deceased, hence, as per the judgment of the Hon’ble Apex Court in the cases of Magma General Insurance Co.

¶252

Limited v. Nanu Ram & Others⁹ and National

¶253

Insurance Co. Ltd. Vs. Pranay Sethi¹⁰ , the claimants

¶254

8 AIR 2009 SC 3104

¶255

9 2018 ACJ 2782

¶256

10 (2017) 16 SCC 680

¶257

36 -

¶258

MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

¶259

are entitled to Rs.40,000/- each under the head ‘ Loss Of Consortium’ . Accordingly, Rs.80,000/- (Rs.40,000 x 2)

¶260

is awarded under the head ‘Loss Of Consortium including Loss Of Love And Affection’ .

¶261

Further, compensation awarded under the head

¶262

‘ Towards Funeral, Obsequious And Transportation Of

¶263

Dead Body Expenses’ at Rs.25,000/- is on lesser side and hence a sum of Rs.30,000/- is awarded under the said head.

¶264

Hence, the claimants are entitled for a total

¶265

enhanced compensation, under various heads as follows:

¶266

Loss of Dependency along : Rs. 12,09,600/with future prospects (Rs.8,000 + 3,200 (40% of 8,000) – 50% x 18 x 12) Loss of Consortium and : Rs. 80,000/Loss of Love and Affection

¶267

37 - MFA No. 21 of 2017 MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

¶268

Towards Funeral, : Rs. 30,000/Obsequious and Transportation of dead body expenses’

¶269

TOTAL : Rs. 13,19,600/-

¶270

Therefore, the claimants are awarded a total

¶271

compensation of Rs.13,19,600/- as against the compensation awarded by the Tribunal at Rs.6,65,000/-. Hence, the claimants are entitled for an additional compensation of Rs.6,54,600/- (Rs.13,19,600 – Rs.6,65,000/-), along with interest at 6% per annum from the date of filing of the petition till deposit.

¶272

The Tribunal has awarded compensation along with interest at 9% per annum. However, it is held that the compensation shall carry simple interest at 6% per annum instead of 9% per annum. However, the claimants

¶273

38 -

¶274

MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

¶275

are not entitled for interest for the period of 367 days delay in filing the appeal.

¶276

Accordingly, I pass the following:

¶277

ORDER

¶278

i. MFA No.21/2017 (MVC No.539/2014) is filed by the appellants-insurance company is Allowed In Part.

¶279

ii. MFA No.3356/2016 (MVC No.378/2014) is filed by the appellant-insurance company is Allowed in Part .

¶280

iii. MFA No.1629/2017 (MVC No.539/2014) is filed by the appellant-claimant is Allowed in Part .

¶281

iv. MFA No.4784/2017 (MVC No.378/2014) is filed by the appellant-claimant is Allowed in Part

¶282

v. The impugned judgment and award dated 24.09.2016, passed in M.V.C.No.539/2014, on the file of the Senior Civil Judge,

¶283

39 -

¶284

MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

¶285

Channarayapatna is modified to the extent that the Claimants are entitled for an additional compensation of Rs.1,80,000/- (Rs.14,50,000 – Rs.12,70,000), along with interest at 6% per annum from the date of filing of the petition till deposit, in addition to what has been awarded by the Tribunal. However, the claimants are not entitled for interest for the period of 25 days delay in filing the appeal.

¶286

vi. The impugned judgment and award dated 02.03.2016, passed in M.V.C.No.378/2014, on the file of the Senior Civil Judge, MACT, Holenarasipura is modified to the extent that the claimants are entitled for an additional compensation of Rs.6,54,600/- (Rs.13,19,600 – Rs.6,65,000/-), along with interest at 6% per annum from the date of filing of the petition till

¶287

40 -

¶288

MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017

¶289

deposit. However, the claimants are not entitled for interest for the period of 367 days delay in filing the appeal.

¶290

vii. The amount in deposit shall be transferred to the Tribunal forthwith.

¶291

viii. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

¶292

ix. No order as to costs.

¶293

x. Draw award accordingly.

¶294

Sd/JUDGE

¶295

¶296

List No.: 1 Sl No.: 47

The Branch Manager v. Smt Gowramma

Case brief

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The Branch Manager v. Smt Gowramma

Case brief

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